Ramkaran vs State Of M.P.
2023 Latest Caselaw 18224 MP

                                   1
 IN     THE       HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 1 st OF NOVEMBER, 2023
                  CRIMINAL APPEAL No. 2707 of 1998

BETWEEN:-
RAMKARAN, S/O CHURAMAN CHOUDHARY, AGED
ABOUT 24 YEARS, RESIDENT OF VILLAGE BHADRI,
POLICE STATION BARELA, DISTRICT JABALPUR
(MADHYA PRADESH)

                                                                .....APPELLANT
(BY SHRI RANJAN BANERJEE AND MS. SEEMA SAHU - AMICUS CURIAE)

AND
STATE OF M.P. (MADHYA PRADESH)

                                                              .....RESPONDENT
(BY SHRI P. CHATTERJEE - PANEL LAWYER)

      Heard on         : 04.10.2023
      Pronounced on: 01.11.2023

      This appeal having been heard and reserved for judgment, coming on

for pronouncement this day, the court passed the following:
                                 JUDGMENT

T h is appeal has been preferred against the judgment passed on 12.10.1998 in Sessions Trial No.585/95 by the Sixth Additional Sessions Judge, Jabalpur, whereby the appellant was convicted for the offence of Sections 363, 366, 376 and 323 IPC and sentenced to three years rigorous imprisonment with fine of Rs.500/-, five years rigorous imprisonment with fine of Rs.1,000/-, seven years rigorous imprisonment with fine of Rs.2,000/- and one year rigorous imprisonment, respectively. It was further directed that the appellant shall

undergo rigorous imprisonment of one month, three months and six months respectively for non-payment of fine amounts.

2. Brief facts of the prosecution case are that the prosecutrix was on her way to her father's place at around 5:00 p.m. on the date of incident; a boy riding a bicycle came to her and asked where she was to go; when the prosecutrix replied that she has to reach the University, that boy offered her a ride on the bicycle but instead of taking her to the University, he took her outside the city and when prosecutrix opposed it, he threatened her and asked her not to scream; he took her towards jungle and there he committed rape upon her twice; thereafter he took her to his place where his mother inquired

about the prosecutrix; when prosecutrix started narrating the incident that boy assaulted her; the mother of appellant brought Kotwar who took the prosecutrix as well as the appellant to the police station; on the basis of information given by the prosecutrix, a report was lodged and a case was registered against the appellant; the prosecutrix was medically examined. According to medical officer, the age of prosecutrix was only 14 yeas at the time of incident. A crime was registered in Police Station, Civil Lines, and the matter was investigated. After the filing of charge-sheet, the trial was held and appellant was convicted and sentenced as aforesaid.

3. The grounds taken in this appeal are that no offence was committed by the appellant and if it is assumed that there was commission of any offence on his part, then it was at the most punishable under Section 354 IPC. The prosecutrix claimed that she was subjected to sexual intercourse thrice by the appellant and sustained injuries but in her medical examination, no injury was found on her body. Though there was fresh tear of hymen, but there was no

fresh bleeding. Opinion about recent sexual intercourse could not have been given by the medical officer. Dr. M. M. Agrawal, who conducted the ossification test of prosecutrix, has admitted that there can be an error of two years in assessment of age via this method. The date of birth of prosecutrix, as mentioned in school record is 26.2.1982. It was not based upon the birth certificate and it was also not disclosed who gave information about this date of birth, hence much reliance could not be placed on this entry. The FSL report did not confirm the presence of sperm on the vaginal slide of prosecutrix. No fresh injury was found on her private parts. Further, the sentence passed by the learned trial court is highly excessive. It is, therefore, prayed that the appellant be acquitted and the appeal be allowed.

4. State has opposed the appeal on the ground that no case has been made out for interference in the finding of conviction and the sentence passed by the trial court. Hence, it is prayed that the appeal should be dismissed.

5. Parties have been heard at length and the record has been perused carefully.

6. This is a case where the appellant has been convicted for the offences of Sections 363, 366, 376 and 323 IPC and this conviction is primarily based upon the testimony of prosecutrix. The appellant has taken plea of false implication and also the plea of prosecutrix being a consenting party. The two

defence pleas do not concile with each other but as both of them have been raised in defence, evidence in context of both these pleas need to be examined.

7. The plea of false implication is based on the fact that the prosecution story is contradictory, the statements of prosecutrix are not supported by her medical evidence and even FSL report tested negative for presence of sperm. No doubt the FSL report, marked as Ex.P-14, does not confirm presence of

sperm on the vaginal slide as well as clothes of prosecutrix, though they tested positive for presence of blood, therefore it is argued that on the basis of FSL report, it cannot be claimed that the prosecutrix was raped.

8. According to the prosecution, victim was staying in Seoni hostel and had come to Jabalpur in summer vacation. It is claimed by the prosecution that she was on her way to meet her relative in the University when appellant met her midway; asked her to sit on his bicycle and offered to drop her to her relative's place. It is further claimed that instead of taking her to her relative, he took her towards forest, committed rape with her on more than one occasion and then took her to his village. It is also claimed by the prosecution that the prosecutrix on reaching the house of appellant met his mother and complained about the act of appellant upon which the mother of appellant took the help of Kotwar and then the matter was reported to the police next day. All these facts, which are mentioned in the FIR, marked as Ex.P-1, have been proved by the young prosecutrix through her consistent testimony. There was no enmity between the two parties, therefore, in the light of consistent testimony there appears no reason for false implication.

9. It has been suggested during cross-examination of prosecutrix that she had left the house of her guardian after a fight but that is not the subject of analysis here because that relates to an incident prior to the commission of offence and that was solely a family matter of prosecutrix, therefore, it could not have been given any right to the appellant to commit crime of rape with a young prosecutrix.

10. Kotwar would have been an important witness in this case who rescued the prosecutrix from the house of appellant and helped her to get the

FIR registered against the appellant but he was not examined in the case. Any lapses made on the part of prosecution in not presenting a material witness for examination is not suffice to demolish the credible testimony of prosecutrix.

11. Father of prosecutrix P.W.2 has also been examined in the case who corroborates the fact that he came to know about the crime and also the fact that the prosecutrix, the chowkidar and the appellant were present in the police chowki when he reached there.

12. MLC report of prosecutrix is marked as Ex.P-15. Dr. (Smt.) Sulekha Trivedi (P.W.9) had examined her and found that the hymen was recently ruptured, however, there was no fresh bleeding present therein. The incident occurred on the evening of 21.6.1995 while prosecutrix was medically examined on 22.6.1995 in the evening at around 4:00 p.m. on the next day. This time lapse is self-explanatory for absence of fresh bleeding. Dr. (Smt.) Sulekha Trivedi (P.W.9) had found the recent rupture of hymen but has given no definite opinion about commission of rape. She has admitted in her cross-examination that the hymen could have been ruptured by inserting a finger or by getting hurt from any other article but for this, it should have been shown that the article was of such a nature that it was only rupturing the hymen and not causing any injury in the surrounding area. No suggestion has been given to the prosecutrix regarding getting hurt by any such article. Further, prosecutrix is a young girl and it is hard to believe that she would have self-inflicted the injury. There is even no suggestion to that effect given to her during cross-examination. Thus, the observation made by Dr. (Smt.) Sulekha Trivedi only indicates penetration through a sexual intercourse and no other inference can be drawn on the basis of this evidence.

13. The defence has heavily relied upon the negative FSL report, which is

marked as Ex.P-14. It is notable that the vaginal slide of prosecutrix was prepared on 22.6.1995 and that slide as well as clothes were handed over to the Constable by Dr. (Smt.) Sulekha Trivedi on 22.6.1995 itself but the draft sent by the Superintendent of Police for the forensic examination of these articles is dated 27.7.1995 as is evident from Ex.P-15. Interestingly, the report prepared by FSL is dated 1.8.1998 and the letter number of Superintendent of Police, Jabalpur, mentioned in that report does not match with the details given in Ex.P- 13, which is the actual letter sent to FSL. It is, therefore, apparent that there have been some unexplained facts regarding the items sent for forensic examination, the details of letter through which these items were sent and lapse of almost three years in the forensic analysis of these articles. In the light of these unexplained facts, the negative FSL report cannot be given much credence.

14. Prosecution has relied upon the statements of school Principal, Smt. N. Patle (P,.W.8), and the scholar register entry regarding the date of birth of

prosecutrix. According to this register, prosecutrix was studying in Maharani Laxmibai Madhyamik Kanya Shala, Seoni, and her date of birth was mentioned therein as 26.2.1982. The learned counsel for the appellant has argued that this entry cannot be believed for the reason that no birth certificate or any other document relating to date of birth was given to the school at the time of getting the prosecutrix admitted in the school. It is interesting to note that the father of prosecutrix (P.W.2) has not been cross-examined regarding her date of birth while he has categorically stated in his examination-in-chief that the prosecutrix was born in 1982. Since the incident occurred in the year 1995, therefore, it cannot be successfully challenged in the absence of cross-examination of the

father of prosecutrix that prosecutrix had not completed age of 14 years at the time of incident. Even the ossification test report given by Dr. M. M. Agrawal (P.W.4) reveals that on the basis of examination, he found the prosecutrix to be of the age of 14 years. Although he has admitted that there may be a margin of two years in this estimation on both sides but that itself is not sufficient to demolish the evidence regarding school entry on the point of date of birth. Having considered these facts, it can safely be concluded that the prosecutrix was hardly 14 years of age when the incident occurred.

15. The appellant in this case has taken the alternative plea that prosecutrix was a consenting party, otherwise she would not have taken a ride for more than eight kilometers on the bicycle of appellant. Firstly, the prosecutrix is not found to be of consenting age and secondly, the conduct of prosecutrix does not reveal that she was a consenting party. The incident occurred in the evening of 21.6.1995 and the report was lodged by her as soon as she got the opportunity to inform the police. FIR itself suggests that when appellant took the prosecutrix to his house and his mother queried about her, then prosecutrix vouched her grievance and tried to narrate the incident to her but she was assaulted and slapped by appellant. Had it been a case of consent, prosecutrix would not have complained to the mother of appellant nor the appellant would have assaulted the prosecutrix for this reason.

16. The facts of the case, as revealed from the prosecution story, may be summarized that prosecutrix was studying in Seoni and had come to Jabalpur during summer vacation, she took a lift on the bicycle of appellant for reaching the place of her relative but appellant, instead of taking her to that place, took her to the forest site and then committed rape with her. It can be argued that prosecutrix did not try to run away but from the statements of Dr. (Smt.)

Sulekha Trivedi (P.W.9) it is evident that prosecutrix was a thin built small girl and appellant, as per the statements of Dr. A. K. Jain (P.W.5) was a well-built adult man of the age of 24. It might be possible that prosecutrix did not have the courage to rescue herself from the custody of appellant and that does not mean by itself that she was a consenting party.

17. Learned counsel for the appellant has relied upon decisions of various High Courts delivered in the cases of Narendra Singh Bahal Singh v. State of M.P. 1996 M.P.L.J. 518; Jagannath v. State 1952 Cr.L.J. 1200 (Rajasthan High Court) and Ram Kala v. Emperor AIR (33) 1946 Allahabad 191. I have gone through all of these citations. It has been correctly observed in these citations that the prosecution must prove the guilt of accused and there is no reverse burden on accused to prove his innocence but it cannot be successfully argued in the present case that the prosecutrix, being a young girl, could not have been relied upon for the reason of being tutored. Here, the prosecutrix was taken from the village of appellant to the police station and in between she did not meet her parents before lodging the FIR. The persons who took her to the police stations were the residents of the village of appellant with whom the prosecutrix had no earlier acquaintance. Further, the citation of Narendra Singh (supra) cannot be applied here because in that case, the father of prosecutrix could not disclose the exact date or even the year of birth of prosecutrix while in the present case, he has categorically stated that prosecutrix was born in the year 1982 and he has not been cross-examined on that point.

18. On the basis of above discussions, the theory of false implication and prosecutrix being a consenting party have both failed in the present case and the elaborate discussion of prosecution evidence brings to the conclusion that no

two views are possible in this case as the prosecution has been successful in establishing the guilt of appellant. Thus, this court finds no reason to interfere with the finding of conviction rendered by the learned trial court.

19. The record discloses that the appellant was convicted and sentenced under Sections 363, 366, 376 and 323 IPC. Section 366 IPC is a graver offence of Section 363 IPC, therefore, punishment under both the offences is not justified in the light of provisions of Section 71 IPC.

20. Accordingly, the sentence passed by the trial court under Section 363 IPC is set aside while the sentences passed under Sections 366, 376 and 323 IPC are affirmed and accordingly it is held that the appellant shall serve the remaining sentences of RI of 5 years under Section 366 IPC, RI of 7 years under Section 376 IPC and RI of 1 year under Section 323 IPC. The fine amounts as imposed by the learned trial court under Sections 366 and 376 IPC are confirmed along with the default stipulations to undergo additional RI of 3 months and 6 months, respectively for the offences of Sections 366 and 376 IPC. The appellant is on bail. His bail-bonds are discharged. He be taken into custody and sent to jail to undergo the remaining period of sentences.

21. Let a copy of this judgment be send to the court below along with its record for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.11.02 15:04:57 +05'30' Adobe Reader version: 11.0.8